CHAPTER 11
THE POWERS OF CONGRESS
THE SCOPE OF CONGRESSIONAL
POWERS
• Congressional Power
• Congress has only the powers granted to it by Congress.
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Three types of Powers
Expressed – explicitly in specific wording of Constitution
Implied – by reasonable deduction from the expressed powers
Inherent – powers given by the creation of a national
government
• Congress cannot
• Create a national public school system, abolish jury trials, etc.
• Strict versus Liberal Construction
• Strict constructionists were led by Thomas Jefferson. They
continued to argue the Anti-Federalist position. Congress,
they felt, should be able to exercise only its expressed
powers and those implied powers that are absolutely
necessary to carry out the expressed powers. They wanted
the States to keep as much power as possible.
• Liberal Constructionists
• They were led by Alexander Hamilton and were primarily
those who had led the fight to adopt the Constitution. They
believed in a liberal interpretation of the Constitution and
broad powers given to Congress.
• The Liberal Constructionists “won” and the powers wielded
by the National Government have continued to expand far
beyond what they expected.
THE EXPRESSED POWERS OF MONEY
AND COMMERCE
• The Power to Tax
• Article 1, Section8, Clause 1
• “To lay and collect taxes, duties, imposts and excises, to pay the
debts and provide for the common Defense and general
Welfare of the United States”
• The Purpose of Taxes
• 95% of the money taken in by the Federal government
comes from taxes levied by Congress.
• A tax is a charge levied by government on persons or
property to raise money to meet public needs.
• Tariffs are used to “protect” domestic industry and some
items are taxed for public health and safety.
• Limits on the Taxing Power
• Only for public purposes
• Cannot tax exports
• Direct taxes must be apportioned among the states
according to their populations
• A direct tax is one that must be paid directly to the government
by the person on whom it is imposed.
• Must be uniform throughout the US
• An indirect tax is one first paid by one person but passed on to
another.
• The Borrowing Power
• Congress can “borrow money on the credit of the United
States”
• There is a limit on public debt but Congress regularly raises it
• The federal government practices deficit financing
• The Commerce Power
• Power to regulate interstate and foreign trade
• In Gibbons v. Ogden 1824, the Supreme Court began a
precedence to interpret this power broadly
• Limits include: Cannot tax exports, cannot favor the ports of
one state over another, cannot require a “vessel” to enter
another state and pay duties, cannot interfere with the
slave trade until 1808
• The Currency Power
• Congress has the power to “coin money and regulate the
value thereof
• States are denied this power
• The Bankruptcy Power
• Bankruptcy is the legal proceeding in which the bankrupt’s
assets are distributed among those to whom debt is owed.
• While both the state and federal governments have the
power to regulate bankruptcy, federal bankruptcy laws are
so broad that they all but exclude the states
OTHER EXPRESSED POWERS
• Foreign Relations
• Congress shares powers in the area of Foreign Affairs with
the President.
• Congress has expressed powers, especially the war powers
and the power to regulate foreign commerce
• Also, powers from the fact that the United States is a
sovereign state in the world community.
• Has the inherent power to act on matters affecting the
security of the nation
• War Powers
• 8 of the expressed powers deal with war and national
defense
• Only Congress can declare war
• Raise and support armies, provide and maintain navy,
make rules pertaining to the governing of the land and
naval forces, can “call forth the militia”
• The War Powers Resolution of 1973 gives Congress the
power to restrict the use of American forces in combat
areas where a state of war does not exist
• Other expressed powers
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Naturalization
The Postal Power
Copyrights and Patents
Weights and Measurements
Power over Territories and other areas
Judicial Powers
THE IMPLIED POWERS
• The Necessary and Proper Clause
• Implied powers are those powers not set out in the
Constitution but implied by those that are.
• The Necessary and Proper Clause (or elastic clause)
provides most of the vitality and adaptability of the
Constitution can be traced to this clause
• “To make laws which shall be necessary and proper for carrying
into execution the foregoing powers and all other powers
vested by this constitution in the government of the United
States”
• The Battle over Implied Powers
• In 1790, Alexander Hamilton urged Congress to establish a
national bank. This set off a debate about whether
Congress had the authority to create a national bank.
Hamilton and the necessary and proper clause won out
and the national bank was established in 1791.
• McCulloch v. Maryland
• The Supreme Court decided in favor of the “necessary and
proper” clauses’ use to create a national bank.
• The Doctrine in Practice
• A doctrine is a principal or fundamental policy. The doctrine of
implied powers has been applied to many, many situations.
THE NON-LEGISLATIVE POWERS
• Constitutional Amendments
• Article V says that Congress may propose amendments
• Electoral Duties
• In special circumstances, Congress has electoral duties
• If no candidate receives a majority of electoral votes, the
House is to decide the issue with each state casting one
vote. The happened with Thomas Jefferson in 1801 and
John Quincy Adams in 1825
• The Senate chooses the Vice President if no candidate
receives a majority of electoral votes. Richard M. Johnson
in 1837
• Also, Congress votes on the president’s nomination to fill a
Vice President vacany
• Impeachment
• The House has the sole power to impeach – or accuse/bring
charges against
• The Senate has the sole power to try impeachment cases.
• Impeachment requires a majority vote in the House but
conviction requires two-thirds vote in the Senate.
• Andrew Johnson was impeached when he deliberately
violated the Tenure of Office Act but was acquitted.
• Bill Clinton was impeached lying under oath about having
an affair with a White House intern.
• Richard Nixon resigned before being impeached.
• Executive Powers
• All major appointments made by the President must be
confirmed by the Senate by majority vote.
• The President makes treaties and the Senate may accept or
reject the treaty or offer amendments
• Investigatory Powers
• Congress has the power to investigate any matter that falls
within the scope of its legislative powers
• Gather information useful in making legislation, oversee
operations of various executive branch agencies, focus public
attention on a particular subject, expose questionable activities
of public officials or private persons, promote interests of
members of Congress